[Federal Register: August 22, 2006 (Volume 71, Number 162)]
[Notices]
[Page 48968-48970]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au06-118]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
Proposed Agency Information Collection Activities; Comment
Request
AGENCY: Federal Railroad Administration, DOT.
ACTION: Notice and Request For Comments.
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SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.), this notice announces that the Information
Collection Request (ICR) abstracted below has been forwarded to the
Office of Management and Budget (OMB) for review and comment. The ICR
describes the nature of the information collection and its expected
burden. The Federal Register notice with a 60-day comment period
soliciting comments on the following collection of information was
published on June 16, 2006 (71 FR 34990).
DATES: Comments must be submitted on or before September 21, 2006.
FOR FURTHER INFORMATION CONTACT: Mr. Robert Brogan, Office of Planning
and Evaluation Division, RRS-21, Federal Railroad Administration, 1120
Vermont Ave., NW., Mail Stop 17, Washington, DC 20590 (telephone: (202)
493-6292), or Gina Christodoulou, Office of Support Systems, RAD-20,
Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35,
Washington, DC 20590 (telephone: (202) 493-6139). (These telephone
numbers are not toll-free.)
SUPPLEMENTARY INFORMATION: The Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13, section 2, 109 Stat. 163 (1995) (codified as revised
at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR Part
1320, require Federal agencies to issue two notices seeking public
comment on information collection activities before OMB may approve
paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1),
1320.12. On June 16, 2006, FRA published a 60-day notice in the Federal
Register soliciting comment on ICRs that the agency was seeking OMB
approval. 71 FR 34990. FRA received one comment in response to this
notice.
The comment submitted came from the Association of American
Railroads (AAR). AAR opposes OMB renewal of this information collection
because FRA has not yet fully accommodated its request concerning
electronic recordkeeping for the Hours of Duty Records required in this
collection. Specifically, AAR remarks:
* * * FRA's hours of service regulations illegally discriminate
against electronic records. FRA's regulations only permit paper
records because 49 CFR section 228.9 requires that HOS [Hours of
Service] records be ``signed'' by the employee whose time on duty is
being recorded (or by the ranking crew member, in the case of train
crews). A railroad has to apply for a waiver to keep HOS records
electronically.
AAR argues that ``FRA has chosen the use of the waiver program to
impose requirements that do not apply for paper records.'' Further, AAR
states:
FRA has required railroads to, inter alia,
Develop computer programs capable of measuring and
analyzing records to determine compliance with HOS requirements,
focusing on issues such as time spent ``deadheading'' (nonworking
travel not including commuting), ``commingled'' service (service not
subject to HOS restrictions), and employee reports of excess
service;
Establish quality-assurance programs consisting of
regular and remedial training as determined by FRA and utilizing
materials reviewed by FRA; and
Make electronic records accessible to FRA through
various field locations.
AAR observes that ``there are no comparable requirements for paper
records.'' AAR goes on to note that ``the Government Paperwork
Elimination Act (GPEA) required OMB to develop procedures for the
acceptance of electronic records'' and that ``by Oct. 21, 2003, OMB was
to ensure that agencies provide an option for the maintenance of
records electronically and, where practicable, the use of electronic
signatures.'' AAR believes that FRA's ``hours of service regulations
violate the GPEA's mandate to facilitate electronic records.''
FRA and its representatives have a long relationship with AAR.
There have been many contacts and discussions between FRA and AAR
officials regarding the Hours of Service Regulations and electronic
recordkeeping. FRA has been working for some time with the AAR on this
issue. FRA has meet with AAR representatives, and has indicated its
intention to act on AAR's request regarding electronic recordkeeping.
FRA has a team now working on a proposed rule to enable electronic
recordkeeping (which would eliminate the need for waivers), so AAR's
belief that FRA is unresponsive and that no progress has been made is
not correct. By its nature, the process of regulatory development and
enactment is a slow one. Moreover, FRA has communicated to AAR that top
agency officials and specialists are available to work on any issues
under current waivers while a proposed rule is being developed.
In its comments, AAR admits that electronic recordkeeping option
has been and is available through agency waivers. FRA clearly then has
no bias against electronic records. In fact, FRA has long encouraged
the use of electronic recordkeeping, wherever feasible, to reduce
burden on respondents. However, because the work of ``covered
employees'' directly impacts rail safety and because ``fatigue''
resulting from excessive work hours is a direct threat to public safety
and the safety of train crews and other railroad workers, FRA must
ensure that the Federal hours of service (HOS) laws are strictly
adhered to in order to meet its primary safety mission and its
statutory obligation for HOS oversight. Although FRA permitted
railroads to do away with various costly and cumbersome paper records,
AAR complains that FRA imposes additional
[[Page 48969]]
requirements for electronic records, overlooking the fact that the
eliminated paper records provided FRA with much information that it
needs to fulfill its statutory HOS oversight.
The Interstate Commerce Commission (ICC), in 1921, mandated hours
of duty record keeping with specific data fields that facilitated its
statutory oversight obligations. The format and instructions presented
in the ICC order have continued to be used by railroads until the
beginning of electronic hours of duty programs in the mid 1990's.
However, in 1969, the U.S. Congress amended the HOS to create a second
duty tour category that was neither On Duty Time nor Off Duty Time. FRA
refers to that category as Limbo Time. The existing record keeping
requirements, much of which was carried over from the ICC Order, were
not changed as a result of the statutory amendment primarily because
the ``other'' existing record keeping requirements, i.e., Delay Report,
of the ICC Order provided the necessary information to determine Limbo
Time. Railroads utilizing the Electronic waiver process are not
required to maintain the Delay Report segment of the original ICC
Order. Instead, the programs include an additional data field, titled
``Relieved Time,'' to identify the beginning of the Limbo Time. The
former Off Duty field used prior to the HOS amendment has been changed
to Released Time, i.e., the end of Limbo Time and the beginning of a
Statutory Off Duty period. Without these fields or the Delay Report,
neither FRA nor the railroads can accurately determine Total Time On
Duty nor when the employees rest period begins.
Monitoring Indicators is an electronic oversight not feasible in
paper records. These indicators point to excess service and/or obvious
reporting flaws that liable the railroad through the penalty schedule
contained in the HOS and the Code of Federal Regulations Part 228. If
reporting flaws remain unchecked by the railroad, FRA is left with a
record that does not facilitate its oversight and employee safety
concerns for statutory compliance.
Training requirements contained in the Electronic waivers
necessitate that railroads train their employees and supervisors in the
applications of the HOS. The purpose of the FRA review is to make
certain that the training materials properly describe and explain to
employees the proper entry of data needed to determine compliance with
the law. Without an accurate record with data based on the HOS, FRA can
not meet its oversight obligations.
Finally, regarding AAR's allusion to the requirements of the
Government Paperwork Elimination Act (GPEA), FRA is fully compliant.
GPEA itself stipulates that ``executive agencies provide for the option
of electronic maintenance, submission, or disclosure of information as
a substitute for paper and for the use and acceptance of electronic
signatures, when practicable.'' Because there is no Federal Government,
OMB, or Transportation Department standard for electronic recordkeeping
and electronic signatures, FRA set up the Electronic waiver process so
that it can closely scrutinize individual railroad requests for
electronic recordkeeping relating to the Hours of Duty Records. In
section 1703 of GPEA relating to the use and acceptance of electronic
signatures by executive agencies, the law specifically states that the
procedures developed by executive agencies ``shall ensure that
electronic signatures are as reliable as is appropriate for the purpose
in question and keep intact the information submitted.'' Until a
proposed rule for electronic recordkeeping is completed, FRA's
Electronic waiver process attempts to do exactly that by setting
requirements for the integrity, reliability, accessibility, and
security of railroad HOS electronic recordkeeping systems. At the same
time, FRA's waiver system has been set up to be fully enforceable
legally and thus is completely in compliance with Section 1707 of GPEA.
This section states:
Electronic records submitted or maintained in accordance with
the procedures developed under this title, or electronic signatures
or other forms of electronic authentication used in accordance with
such procedures, shall not be denied legal effect, validity, or
enforceability because records are in electronic form.
In sum, it is in everyone's best interest--the American public's,
the railroads' and their employees, AAR's, and FRA's--that this
collection of information be renewed by OMB. Although FRA has not
issued an electronic rulemaking as quickly as the AAR would like, the
agency is working on it and is taking the time necessary to do it
right.
Before OMB decides whether to approve this proposed collection of
information, it must provide 30 days for public comment. 44 U.S.C.
3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or
disapprove paperwork packages between 30 and 60 days after the 30-day
notice is published. 44 U.S.C. 3507 (b)-(c); 5 CFR 1320.12(d); see also
60 FR 44978, 44983, Aug. 29, 1995. OMB believes that the 30-day notice
informs the regulated community to file relevant comments and affords
the agency adequate time to digest public comments before it renders a
decision. 60 FR 44983, Aug. 29, 1995. Therefore, respondents should
submit their respective comments to OMB within 30 days of publication
to best ensure having their full effect. 5 CFR 1320.12(c); see also 60
FR 44983, Aug. 29, 1995.
The summary below describes the nature of the information
collection request (ICR) and the expected burden. The revised request
is being submitted for clearance by OMB as required by the PRA.
Title: Hours of Service Regulations.
OMB Control Number: 2130-0005.
Type of Request: Extension of a currently approved collection.
Affected Public: Businesses.
Form(s): N/A.
Abstract: The collection of information is due to the railroad
Hours of Service Regulations set forth in 49 CFR part 228 which require
railroads to collect the Hours of Duty for covered employees, and
records of train movements. Railroads whose employees have exceeded
maximum duty limitations must report the circumstances. Also, a
railroad that has developed plans for construction or reconstruction of
sleeping quarters (Subpart C of 49 CFR part 228) must obtain approval
of the Federal Railroad Administration (FRA) by filing a petition
conforming to the requirements of Sections 228.101, 228.103, and
228.105.
Annual Estimated Burden Hours: 3,294,676.
Addressee: Send comments regarding these information collections to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 Seventeenth Street, NW., Washington, DC, 20503;
Attention: FRA Desk Officer.
Comments are invited on the following: Whether the proposed
collections of information are necessary for the proper performance of
the functions of FRA, including whether the information will have
practical utility; the accuracy of FRA's estimates of the burden of the
proposed information collections; ways to enhance the quality, utility,
and clarity of the information to be collected; and ways to minimize
the burden of the collections of information on respondents, including
the use of automated collection techniques or other forms of
information technology.
A comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication of this notice in the Federal
Register.
Authority: 44 U.S.C. Sec. Sec. 3501-3520.
[[Page 48970]]
Issued in Washington, DC on August 16, 2006.
D.J. Stadtler,
Director, Office of Budget, Federal Railroad Administration.
[FR Doc. E6-13900 Filed 8-21-06; 8:45 am]
BILLING CODE 4910-06-P